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Wednesday, March 19, 2008

My Chance to Meet Supreme Court Justice Samuel Alito

This is a legal oriented post, and not a Jewish one, so don't read on if you're not interested! I just want to write this down to help me remember some of the details.

I was given the opportunity by my law school (I work full time by day and attend law school in the evenings) to participate in a "round table discussion" between a group of students and Supreme Court Justice Alito. I was able to ask him a question, which was how he is able to be an originalist and a strict constructionist in a legal system that has already strayed so far from the original meaning of the Constitution. What does it mean to be an originalist or a strict-constructionist, today?

He basically answered that in most areas of the law that the Supreme Court will be asked to consider, the law is very well developed already, in its perhaps non-originalist form, and the Supreme Court is only being asked to consider very specific sub-issues. In cases like these, we are basically stuck with the law as it stands, and one would not be able to really flex his "originalist muscles." (My language, not his). However, he said that in the minority of cases, where constitutional or stautory issues come up which have not been significantly hashed out by previous cases, then one's originalist philosophy would be able to really come to the fore.

He said that a great example of this is the DC v. Heller case, the "D.C. Guns" case, which was argued before the Supreme Court yesterday, Tuesday, March 18th. Before this case, which considers the extent of the coverage of the right to bear arms, virtually no Supreme Court had considered the exact definition of the Second Amendment. So this would be an example of a case where the originalists on the court will be able to fully express their strict-constructionalist judicial philosophy.

After the "round table discussion," I was able to tell him that it was listening to his and John Robert's Confirmation Hearings which inspired me to take seriously my thoughts of going to law school. I also followed up with him about a comment he had made during the discussion, calling the modern supreme court nomination confirmation process, "unfair." I asked him specificly what he meant by that.

He gave two major examples. One is the constant pressure on nominees to tell exactly how they would vote on certain issues, should they come before the court. He said that no nominee has ever answered these questions but that the pressure is mounting that they do so nonetheless, and that to do so would violate legal ethics, taking away their ability to be objective when specific cases come before the court with their specific facts and specific legal questions. He said that if every Senator were able to get answers from the nominee on how the nominee would rule on all of his "hot button" issues, and given the modern quasi-need for a 60 Senator filibuster-proof majority, no nominee would ever get confirmed!

Also, he pointed to the nit-picking of faults by pundits, who try to make issues out of non-issues. He gave the example of how he was faulted for not recusing himself immedietly in the Vanguard case, even though he was not required to recuse himself in that case, because of the rule of judicial ethics.

I pointed out to him that since his opponents knew that he would not answer direct questions about whether or not he would vote to overturn Roe v. Wade, the major issue underlying everything that went on in the confirmation hearings, they were forced to make issues out of other non-issues, since they couldn't speak directly about those with him (Alito).

It was a nice and interesting opportunity to speak to Justice Alito and I wanted to write this down to help me remember what happened!